Full Judgment
Ganga Nath, J.
1. This is an application by Sukhai for transfer of the proceedings pending against him under Section 110, Criminal P.C., an the Court of Mr. Kuldip Narain Singh. Sub-divisional Magistrate, Soraon. The ground given by the applicant, is that the learned Magistrate has rejected the various sureties for appearance offered by the applicant. The applicant was required to furnish two sureties in Rs. 300 each for his presence. Baikunt Nandan and Udit Narain sureties came forward with money and applied to the Court to stand surety for the applicant. The learned Magistrate instead of accepting them demanded an enhanced security from the applicant under Section 117(3), Criminal P.C., for a sum of Rs. 1,000. The applicant thereafter offered two sureties as demanded by the learned Magistrate under Section 117(3). but he rejected them also on receiving a police and tahsil report although the sureties were fit persons and had undertaken to keep the applicant with them. The learned Magistrate not only demanded an enhanced security for Rs. 1,000 under Section 117(3), but reported to the jail superintendent that the applicant was a dangerous person and the applicant was therefore kept in fetters for several days. The learned Magistrate states in his explanation that on the application of the prosecution he did inform the superintendent of jail that the applicant was a dangerous person; thereafter on the 12th October, when the applicant came and gave an assurance to the learned Magistrate that he would not misbehave in Court or in the Court compound the learned Magistrate communicated the applicant's assurance to the jail superintendent with the remark that the Court did not consider it necessary that the accused should be given fetters and consequently the applicant's fetters were removed. These two inconsistent reports of the learned Magistrate show that he had made the first report without satisfying himself.
2. As regards rejecting sureties it is a fact as appears from the explanation of the learned Magistrate that no less than 8 sureties were produced by the applicant who were all rejected on the reports received from the tehail and police station by the Magistrate. In Bhawani Singh v. Emperor 1914 All. 489, it was held that the Magistrate had a wide discretion under Section 122 to accept, or reject a surety. This discretion can however be exercised after a satisfactory enquiry in accordance with law. Where a Magistrate acting on a police report aply refused to accept certain persons as sureties, it. was held that there having been no enquiry the order was bad. In Gopi Khatik v. Emperor 1922 All. 541, it was held that when sureties are offered it is the duty of the Court to accept them unless it is satisfied that they are not proper persons. It should not reject them on police report. Since then there has been amendment in Section 122, Criminal P.C. Proviso to Clause 1, lays down that before refusing to accept or rejecting any surety a Magistrate shall either himself hold an enquiry on oath into the evidence of the surety or cause such enquiry to be held and a report to be made thereon by a Magistrate Subordinate to him. Clause 2 lays down that a Magistrate shall, before holding enquiry, give reasonable notice to the surety or to the person by whom, the surety is offered and shall, in making the enquiry, record the substance of the evidence adduced before him. Clause 3 lays down that if the Magistrate is satisfied, after considering the evidence so adduced either before, him or before a Magistrate deputed under Sub-section 1, and the report of such Magistrate (if any) is that the surety is an unfit person for the purposes of the bond, he shall make an ordter refusing to accept or rejecting, as the case may be, such surety and recording his reasons for so doing. The learned Magistrate has entirely ignored the provisions of Section 122, Criminal P.C.
3. It appears from the explanation of the learned Magistrate that he let off the applicant to find out sureties, but the sureties produced by him were rejected by the learned Magistrate. All these circumstances are such as might reasonably cause an apprehension in the mind of an accused person. It is therefore ordered that the case be transferred from the Court of Mr. Kuldip Narain Singh, Section D.M. Soraon and sent back to the learned District Magistrate for trial by any other competent Magistrate under him.